About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 600
|
|
Standard Bank of South Africa Ltd v Die Rasie en Ronel Kleyb Familie Trust en Anders, Standard Bank of South Africa Ltd v Joseph (18534/2010, 19441/2009) [2010] ZAWCHC 600 (3 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
In
the matters between:
18534/2010
STANDARD
BANK OF SOUTH AFRICA LIMITED
and
DIE
RASSIE EN RONEL KLEYN FAMILIE TRUST EN 2 ANDER
19441/2009
STANDARD
BANK OF SOUTH AFRICA LIMITED
and
SHAFIEK
JOSEPH
JUDGMENT
HANDED DOWN ON FRIDAY, 3 DECEMBER 2010
CLEAVER
J
[1]
The abovementioned matters came oefore me in motion court some time
ago and were postponed in order to receive representations
from
counsel as to whether, in the light of the judgment in Rossouw
1
judgment the provisions of s 129(1)(a) of the National Credit Act 34
of 2005 ("the NCA") had been complied with.
[2]
Section 130 of the NCA which sets forth the procedure to be followed
when a credit provider wishes to enforce a credit agreement,
provides inter alia that the credit provider must have delivered the
prescribed notice in terms of s 129(1) of the NCA before
the
agreement may be enforced. In
Rossouw
it
was held that in an application for summary judgment the plaintiff
was required to satisfy the court by including appropriate
averments
in the summons to establish that the manner in which the parties had
agreed that notices in terms of their contract
would be forwarded to
the defendant had been complied with or failing that, that one of
the methods set forth in s 65(2) had
been followed. In the cases
before me, the defendants in each case elected in the mortgage bonds
relied upon to receive notices
by registered post addressed to them
at the addresses stated in the bonds. In neither of the cases before
me does the summons
contain a reference to the manner in which the
notice in terms of 129(1) was delivered to the defendant. This
information does
however appear from the affidavit filed by the
plaintiff in terms of Practice Note 33(1) of the Consolidated
Practice Notes for
this court. From this and its attachments, it
appears clearly in each case that the notices were forwarded to the
defendants
by registered mail at the address chosen by them in the
mortgage bond. Although
Rossouw
requires
the method of delivery of the section 129(1) notice to be set forth
in the summons or its annexures, there is a suggestion
in para 52
thereof, that the necessary allegations could appear in the
certificate of compliance, i.e. the affidavit filed in
terms of
Practice Note 33(1). Having regard to the practice which has been
followed in this division for more than a year and
the fact that all
the necessary information to prove satisfactory delivery of the
notices to the defendants are to be found in
the compliance
affidavits, there can in my view be no prejudice to the defendants
who did not enter an appearance to defend the
actions and who
consequently do not deny compliance with the relevant sections.
[3]
In the circumstances, there will be judgment as claimed in each of
the two matters, but in future practitioners would be advised
to
ensure that the necessary allegations appear in detail and in
compliance with the
Rossouw
judgment
in the summons or annexures to the summons.
R B CLEAVER
1
Rossouw
and Another v First Rand Bank t/a FNB Homeloans
case
no 640/2009 (SCA) 30 September 2010.